Erin M. Neal

The defendant brought a threshold motion seeking a declaration that the plaintiff's personal injury claim for non-pecuniary loss was barred under s. 267.5(5) of the Insurance Act, arguing her injuries did not meet the "permanent serious impairment" threshold.

The jury had previously awarded $40,000 for general damages but no future loss of income.

The court, preferring the plaintiff's medical expert, found the plaintiff suffered from chronic pain disorder caused by the accident, constituting a permanent impairment.

While the plaintiff did not meet the employment-related impairment criteria due to successful accommodation and increased income, the court found her usual activities of daily living were seriously and permanently impaired, affecting her household management, social life, and psychological well-being.

The motion was dismissed, affirming the plaintiff met the statutory threshold.

During closing arguments in a personal injury trial, defence counsel asked the jury to consider why the plaintiff did not call her treating physician or her manager as witnesses.

The plaintiff objected and brought a motion to strike the jury.

The court dismissed the motion to strike the jury but found the comments were an inappropriate invitation to draw an adverse inference.

The court held that an adverse inference was not justified because the witnesses were not in the exclusive control of the plaintiff, given modern discovery rules that provide equal access to medical and employment records.